[Foundation-l] [Commons-l] Wikipedia Invites Users to Take Part in Open, ...

[Gregory Maxwell]

On Jan 18, 2008 3:52 PM,  <daniwo59 at aol.com> wrote:
> Further confusion from the Terms of Service
> (http://www.kaltura.com/index.php/cms/signup)
>
> The content on the Kaltura Website, except all User Submitted Media (as
> defined below), including without limitation, the text, software, scripts,
> graphics, photos, sounds, music, videos, interactive features and the like
> ("Content") and the trademarks, service marks and logos contained therein
> ("Marks"), are owned by or licensed to Kaltura, and is subject to copyright
> and other intellectual property rights under United States and foreign laws
> and international conventions.

If they don't want to free their website that shouldn't be an issue.

> You agree to not engage in the use, copying, or distribution of any of the
> Content other than expressly permitted herein, including any use, copying,
> or distribution of User Submitted Media of third parties obtained through
> the Website for any commercial purposes.
>
> You agree not to circumvent, disable or otherwise interfere with security
> related features of the Kaltura Website or features that prevent or restrict
> use or copying of any Content or enforce limitations on use of the Kaltura
> Website or the Content therein.

So the "you may not copy the user contributed media for commercial
purposes" fits hand-in-hand with the CC-*-NC license Kaltura was using
until Wikimedia asked them to use CC-By-SA instead (I hear that this
was due to Brianna pointing out the baddness of pushing NC on
everyone? If so thanks!).  There are a number of places where NCisms
still exist on their site.

Probably some or most of these should be cleaned up, although "We can
use your stuff, people can download it personally, but a competitor
can't mirror our site" is a primary attraction of -NC licenses on
Web2.0 user-exploitive content sites, and is probably something to
keep and eye on and make sure is completely resolved.

I'll leave boggling whole notion of them unilaterally changing the
licensing of all their pre-existing user contributed content
(apparently without notice) as an exercise for the reader.

The DRMish clause is nasty.  Right now Kaltura creations are
inexorably tied into their software (no export, it's rendered on the
fly by flash on the client), so it's already a pretty effective DRM.
This could easily be arguably be expressly against the CC-by-sa
license grant which forbids the use of technological measures for the
purpose of restricting the content, however, another TOS clause you
failed to copy dispenses with that concern:

"By submitting the User Submitted Media to Kaltura, you hereby grant
Kaltura and any of its affiliates a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to (i) host,
cache, store, archive, index, crawl, create algorithms based on,
modify or transcode the User Submitted Media to appropriate media
formats, standards or mediums as part of the Kaltura Website; (ii) to
use, reproduce, distribute, prepare derivative works of, display,
modify, remix, excerpt, adapt or transcode the User Submitted Media to
appropriate media formats, standards or mediums as part of the Kaltura
Website and perform the User Submitted Media in connection with the
Kaltura Website and Kaltura's (and its successor's) business,
including without limitation for promoting and redistributing part or
all of the Kaltura Website (and derivative works thereof), or in
connection with any distribution or syndication arrangement thereof
with third parties or third-party sites, in any media formats and
through any media channels; (iii) to use User Submitted Media for and
in connection with advertising, promotional or commercial purposes,
including without limitation, the right to publicly display, perform,
reproduce and distribute the User Submitted Media in any media format
or medium and through any media channels; (iv) Kaltura reserves and
has the right to sell, license and/or display any advertising,
attribution, links, promotional and/or distribution rights in
connection with User Submitted Media, and Kaltura will be entitled to
retain any and all revenue [snip]"

While an expansive "we get a special right to exploit your content
above and beyond any licensing you've granted the world, just because
you were enough of a sucker to upload it here" may be common place on
Web2.0 sites, I don't think it's ethical, I don't think it's
beneficial to the world of free content, and I don't think it's the
sort of behavior Wikimedia should have anything to do with.

It's quite possible that Kaltura will gladly fix these issues, since I
understand they were responsive to requests prior to the release going
out ...  So while unfortunate there may not currently be any cause for
alarm.